FIQH AND THE FIQH COUNCIL OF NORTH AMERICA
contributed by Yusuf Talal DeLorenzo, Secretary, Fiqh Council of North America, VA ————————————————————————————————————————

As the Muslim community in North America grows to include more ethnically and culturally diverse elements, the process of istifta ’ (in which consultation takes place between qualified experts on religious law and people for whom adherence to that law is an essential part of their faith) and the phenomenon of the “imported” mufti become more problematic. Immigrant and indigent American Muslims of whatever ethnic or cultural background have often been disappointed by the lack of appreciation for local conditions and circumstances on the part of such “imported” muftis. Likewise, community leaders and members alike have come to realize that the legal responum orfatawa obtained through the mail, so to speak, from muftis in Muslim majority countries often fail to address the crux ofthe issues presented to them for consideration. Quite often, their responses raise more problems than they settle. Certainly, this is only natural. For unless there is a clear understanding of the context of a legal question, there is little likelihood that the solution offered will be an adequate one. From here, the idea seems to have taken hold among American Muslims that the institution of istifta’ or Fiqh consultation is one that is best supported by those who fully understand and appreciate the special characteristics of the North American Muslim community and the circumstances in which it strives to develop.

Over the past twenty years, the community has turned increasingly to local experts for the solutions to their Fiqh related problems. The experts consulted have not always had the sort of Fiqh qualifications traditionally required of muftis, but their understanding of local condition, coupled with backgrounds in Arabic or Islamic studies have placed them in the position of being called upon to give opinions on sensitive issues. With the rise of interest in Islamic studies in American academia, however, a number of Muslim scholars with Fiqh credentials have come to American universities for graduate studies, post graduate work, or to fill teaching posts in new or expanding departments. At the same time, American Muslims, especially converts and second generation converts (the children of converts), have sought in increasing numbers to obtain advanced Fiqh training abroad at Islamic universities and traditional Islamic institutions. All of these developments have made it possible for the community to draw upon a wider range of Fiqh expertise and experience.

In recent years, national organizations like the Islamic Society of North America, the Islamic Circle of North America and the ministry of Warith Deen Mohammed have seen the need to form committees of scholars to advise on matters related to Fiqh and the community. Out of one such committee grew the Fiqh Council of North America, an independent body of Fiqh councilors organized in view of the increasing need on the part of the growing Muslim community in North America for considered Shari’ah-based advice and counsel. Its functioning extends to the needs of individuals and organizations within the cornmunity and to those with whom they interact, Muslim and non-Muslim alike. By way of example, over the past year the Council has dealt with questions submitted by individual Muslims, by local and national Muslim organizations, by the Departments of Justice and Defense, by Muslim and non-Muslim trial lawyers, immigration lawyers, and journalists with interests as varied as biological engineering and third world politics.

The Fiqh Council of North America aims at participating, through its academic expertise, in the process of facilitating the Islamic way of life in the secular, non-Muslim environment of North America; and the way it intends to do this is by providing institutions and individuals with jointly considered legal opinions and advice that are based on the Qur’an and the Sunnah. The

Council’s primary objectives, as outlined in its by-laws are:

1) To consider, from a Shari’ah perspective, and offer advice on specific undertakings, transactions, contracts, projects, or proposals, guaranteeing thereby that the dealings of American Muslims fall within the parameters of what is permitted by the Shari’ah.

2) To consider issues of relevance to the community and give, from a Shari’ah perspective, advice and guidelines for policy, procedure, and practice. Such advice may take the form of position papers, fatawa, research papers, sample forms for legal agreements, or whatever else is deemed effective.

3) To consult, on issues requiring specialized knowledge and experience, with professionals or subject specialists.

4) To establish and maintain working relationships with Shari’ah experts worldwide, including muftis, university professors, researchers, Shari’ah court justices, and members of national and international Fiqh councils and academies.

5) To assist local and national organizations in the resolution of conflicts.

6) To advise in the appointment of arbiters, and review arbitration proceedings and decisions for their consistency with Islamic legal principles.

7) To commission research on relevant Islamic legal issues.

8) To maintain and develop a comprehensive Shari’ah library.

9) To anticipate and serve the particular needs of minority groups within the community; youth, women, prisoners, recent converts, etc.

10) To develop a Fiqh for Muslims living in non-Muslim societies.

In terms of its philosophy, the council’s by-laws state that it will make its decisions jointly, and base them on evidence derived from the two most reliable sources of revelation: theQur’an and the authentic Sunnah. In doing so it will employ the principles and methodologies of usul al Fiqh and consider, where relevant, the various opinions of earlier Muslim jurists. All legal schools will be considered equally as intellectual resources to be drawn from in the process of giving contemporary interpretations to the texts of revelation. In other words, the issue of madhhab or affiliation to one legal school of thought or another is one which the council considers valid only in regard to questions of worship or ‘ibadat. Yet, even within that restricted area, new developments have brought about questions that the traditional imams never considered.

Among the most important approaches of the Council in its treatment of new issues and questions that apply particularly to the Muslim communities of North America is its policy of giving additional consideration, in the light of the higher purposes or maqasid of the Shari’ah, to the circumstances imposed upon Muslims by the non-Islamic environment that surrounds them.

In classical terms these circumstances are called the ahwal al mahkum ‘alayki, and are mentioned only briefly, if at all, in the major works of usal. While decisions made by the council are the result of collective scholarship and consideration, members do have the right to write dissenting opinions. As a part of the process of istifta, the mustafti or questioner has the right to accept whichever opinion he feels is the more valid. And this is partly a function of his knowing better what his particular circumstances or ahwal might be.

Another matter for the consideration of the Fiqh councilor in North America is that since the tradition al Fiqh of Islam is essentially the Fiqh of the historical Muslim state and its Muslim majority, it pays little or no heed to the Fiqh of Muslim minorities except in the form of nawzil issued at times of crisis, such as during the Mongol invasions, or the crusades, or in the Moriscan period of Andalusian history. The Fiqh of these periods, however, was never developed or analyzed as it was considered to have come about under adversity and therefore fell under the category of legal exception by virtue of necessity. It is therefore essential that the councilor strive to interpret the teachings of Islam in a way that is consistent both with the higher principles of the Shari’ah and with the circumstances of Muslims living in predominantly non-Muslim societies. Such Fiqh might be known as the Fiqh of Muslims in non-Muslim environments, and its applications in today’s world are probably without limit.

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